Expert Witness

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The Expert Witness (Party Appointed)

In cases where at least one of the parties to a dispute has taken advice from a suitably qualified and experienced professional prior to the commencement of court proceedings, the County Court will normally allow each party to appoint its own expert.

The description that follows is as applicable to proceedings in the County Court as well as in other quasi-judicial bodies.

The expert's conduct during the litigation is governed by Part 35 of the Civil Procedure Rules, which can be found at www.justice.gov.uk/civil/procrules_fin/contents/parts/part35.htm . It is the duty of an expert to help the court on the matters within his expertise. This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid.

A Chartered Surveyor who works as an expert witness must also meet the requirements of the RICS as set down in "Surveyors Acting as Expert Witnesses: Practice Statement", a copy of which can be supplied on request.

Whilst the description that follows is appropriate to a boundary dispute, the same professional skills may be brought to bear on a dispute as to the location and extent of a right of way.

The expert's duty to the court is to interpret the paper title boundary, to advise on the quality of its description in the title deed, and to offer alternative positions for the boundary should the description be ambiguous. In case either party is claiming adverse possession, the expert will assess the age and position of any physical bounding features on which either party may rely.

Establishing the position of the paper title boundary

The expert will need to:

  • Identify the deed that carries the paper title, or
  • the earliest available deed that describes the boundary.
  • Comment upon the quality of the paper title boundary description.
  • Relate the boundary description to a ground position (if appropriate), or
  • relate the boundary position to physical features now present on the ground.
  • Comment on whether or not the ground features carry the paper title boundary.

Extrinsic evidence

Where the description of the paper title boundary is deficient, the expert will consider extrinsic evidence such as:

  • old aerial photographs;
  • old Ordnance Survey maps;
  • planning drawings;
  • the client's family photo album,
  • published material of evidential value (eg. old newspaper articles, picture postcards).

Service offered

The expert witness' involvement in the settlement of the boundary dispute will progress through a number of stages:

STAGE 1

  • Issuing of instructions to expert (usually by client's solicitor),
  • Provision of documentary evidence.

STAGE 2

  • On-site consultation between expert and client,
  • Detailed, measured land survey.

STAGE 3

  • Comparison of documents with survey,
  • Writing and serving the expert report.

STAGE 4

  • Exchange of reports with other party's expert,
  • Possible on-site meeting of experts,
  • Joint Statement & Agreed Plan issued by the experts.

STAGE 5

  • Briefing meetings with client's legal team,
  • Attend Court to give evidence orally,
  • Possible Court visit to site.

STAGE 6

  • Possibly required by Court to peg out the boundary,
  • Possibly required to prepare a suitable plan for a Determined Boundary application to Land Registry.

The Expert Report will include sections on:

  • Background information and Chronology;
  • The registered boundary (if applicable);
  • The parties' claims;
  • Observations made on site;
  • Analysis of the evidence;
  • Conclusions;

and will be prefixed with a Summary and supported by a pertinent set of Appendices.

Expected outcome

Occasionally, the Expert Report (Stage 3) will be sufficient to persuade the parties to settle and will provide a position for the boundary as a basis for settlement.

More often, the Expert Report will advise the client's lawyers and provide a basis for the giving of expert opinion evidence in Court. The outcome of the case is a matter for the Court's decision.

Other Applciations

An Expert Report is normally essential for a boundary dispute tried before the County Court or High Court. It may also be essential in a case that is referred to the Adjudicator to Land Registry.

Some clients will also find it desirable to instruct an expert to prepare an Expert Report to CPR Part 35 standards (at least, for Stages 1, 2 and 3) in preparation for a dispute that is to be decided by mediation or by arbitration.